3/22/2011 @ 6:00PM

The Time For Judicial Engagement

The explosion in the size of government during the past two presidential administrations makes clear we are in a struggle for the very soul of the Constitution, which is limited government. For decades, the prevailing practice among elites on both the left and the right has been to interpret the Constitution as a source of virtually limitless government power and not, as its creators intended, a charter of liberty.

That transformation has been abetted by an ethic known variously as judicial “deference,” “restraint” or “minimalism.” Increasingly, however, a more accurate term would be judicial abdication. The time has come for something else: judicial engagement.

Consider the ongoing challenges to the Patient Protection and Affordable Care Act, commonly known as ObamaCare. Outside the ivory towers of academia, no one seriously believes the Constitution of 1789 empowered the federal government to compel citizens to purchase health insurance against their will. No subsequent amendment supplied that power, so how can this be a close constitutional question? Answer: Since the New Deal, the U.S. Supreme Court has interpreted Congress’ power expansively, applying a nearly irrefutable presumption of constitutionality to even the most flagrant affronts to the doctrine of enumerated powers, as it will again be urged to do with ObamaCare. As a result, government now has nearly unfettered power to do whatever it wants, while individuals must literally plead for the freedom to be left alone.

Take for example the “despotic” power of eminent domain. The Constitution says it may only be used to take private property for “public use.” But in Kelo v. City of New London, the U.S. Supreme Court essentially deleted that restriction to enable the government to take pretty much any property for pretty much any reason–including the economic development of “distressed” (read: working class) communities. In so doing, the Court ignored well-documented evidence that the city had no clear use for the condemned properties and that its development “plan” was a transparent sham. That is just one example among countless others of judges refusing to judge.

Today government activity at all levels far exceeds what the Constitution authorizes. As demonstrated by its recent forays into prescription drug plans for seniors, unilateral declarations of war by the executive branch, health care, investment banking and automobile manufacturing, the federal government has abandoned any pretense of confining itself to powers actually granted by the Constitution. State governments too exercise powers denied by the Constitution, including the abrogation of contractual agreements and the enforcement of regulations designed to thwart–not foster–what our forefathers called “the pursuit of happiness.”

As several past justices have recognized–but the Supreme Court itself does not–the right to earn a living in the occupation of one’s choice is among the most fundamental rights that human beings possess. The ability to work and enjoy the fruits of one’s own labor is the very antitheses of slavery, an institution so insidious that it took a civil war and three separate amendments to begin to dismantle it. The Fourteenth Amendment was specifically designed to protect the right to earn an honest living–not just for newly freed slaves but for all Americans–but today that right receives so little protection that courts will accept the flimsiest of justifications while turning a blind eye to even the most blatant examples of government-imposed economic protectionism.

Indeed, one federal court of appeals seems to have given up entirely, explaining, in the context of lending its imprimatur to Oklahoma’s nakedly anti-competitive regulation of casket sales that “while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.” That might well be an accurate description of the political process, but the idea that judges are powerless to resist it–and that nothing in the Constitution prohibits naked graft of that kind–is profoundly mistaken.

Such judicial abdication has no place in American jurisprudence. James Madison described the courts as “impenetrable bulwarks” against the encroachment of legislative and executive power. But rather than the bulwarks they were designed to be, courts have grown ever more deferential to the other branches, at the expense of constitutionally limited government.

Government regulations are not entitled to a presumption of legitimacy simply because they result from a political process involving elected representatives. To the contrary, the Framers were acutely aware of and deeply concerned about the dangers of interest-group politics and overweening government, and the structure of the Constitution rejects reflexive deference to the legislative branch. It is the courts’ job to check forbidden legislative impulses, not ratify them under the banner of majoritarian democracy.

Constitutional cases are often difficult and frequently defy bright lines or simple rules. But judges must engage the facts of every constitutional case just as they do in other cases. They must meaningfully evaluate the true basis for the government’s action so they can determine, based on the evidence presented, whether it is constitutional.

Ignoring evidence, inventing facts and rubber-stamping the wanton exercise of government power–which have come to be the norm in cases challenging the federal government’s exercise of even unenumerated powers, along with the regulation of property and economic matters by all levels of government–represents collaboration, not judgment. The result is that our liberties depend more and more on the self-restraint of government officials, which experience shows is no restraint at all.

In the face of blatant overreaching by the other branches, there is a growing tendency to present the public with a false dichotomy between improper judicial activism and supposedly laudable judicial restraint. But striking down unconstitutional laws and blocking illegitimate government actions is not activism; it is judicial engagement.

Enforcing limits on government power consistent with the text, structure and purpose of the Constitution is what courts are supposed to do. Allowing the government to exercise forbidden powers is not restraint, it is abdication.

Americans are being smothered under a blanket of regulation that impedes, envelops and exhausts us, with the government demanding an ever-larger share of our earnings and an ever-greater presence in our personal lives and private decisions. Indeed, government today spends so far beyond its means that it has saddled our children and grandchildren with debts they can never hope to repay. That is unjust and immoral, but it is the natural tendency of government unchecked.

The cure for much of this lies in our Constitution, which prescribes more freedom and less government for the body politic. But without engaged judges to enforce those principles, they are nothing more than words on an increasingly faded page.

Chip Mellor is the president and general counsel of the Institute for Justice. Clark Neily is an IJ senior attorney.